23 thoughts on “Patently-O Bits and Bytes by Juvan Bonni”

The Brannon article urges us to worry trade-secret trolls taking over from where patent trolls left off. Anything is possible, but this is an unlikely worry.

The thing about patent infringement is that it is a strict-liability tort. You do not have to know about a patent to infringe it. Therefore, someone of whom you have never heard and with whom you have never worked can appear out of nowhere and tell you that you are infringing her patent.

By contrast, trade secret misappropriation requires a pre-existing duty to be tortious. Unless business Y is engaged in already illegal surveillance techniques (e.g., computer hacking), then, in order for X to sue Y for trade-secret misappropriation Y has to have chosen to do business with X. If X gets a reputation for suing its former partners for trade-secret misappropriation, pretty soon no one will do business with X, and the whole problem will solve itself.

In other words, legal fixes really were (possibly still are) necessary to fix the patent troll problem. It is harder to see how legislation is really necessary for so-called trade-secret trolls. This is a problem that will solve itself if one just leaves well enough alone.

While I do not agree with the end result of what Dozens has to offer, I do believe that the poster alights upon an item that “offends” many:

“The thing about patent infringement is that it is a strict-liability tort. You do not have to know about a patent to infringe it. Therefore, someone of whom you have never heard and with whom you have never worked can appear out of nowhere and tell you that you are infringing her patent.”

This is painted as something intrinsically “unfair.”

Part of the “problem” here is that this “unfairness” is itself unfair. A full understanding of the history of patents and patent protection reveals that the most effective patent systems have always had BOTH a carrot and a stick approach.

The “stick” portion here is what is being taken as an issue. But that very “stick” portion is part of the “spur” to not only innovate, but to publish and “promote” (in an alternate – but equally intended meaning of that word) innovation BY “making it a race.”

Yes, someone else with whom one has never dealt with MAY WELL be able to come to you and STOP you from practicing your own (separately invented) actions.

No, there is NO “intrinsic unfairness” in this aspect of patent law.

People may not like this aspect, and as always, “not liking” is always a personal choice. But make no mistake, this aspect is NOT an unintended consequence, but instead is part and parcel of the patent right itself. Intentionally so. With reason so.

I invite those whose feelings are bruised with this reality to explore for themselves just why patents have always been “built this way” in the grand US experiment.

I also invite those to explore why different aspects of Intellectual Property have been chosen to have different mechanisms. I invite those to explore why protection from utility differs from protection from expression. Why “expression” protections DO provide for Fair Use, while “utility” protections are strict-liability. This is not a bug, but is a feature.

The Andy Blatchford article reporting that “Big Pharma Might… Delay New Drugs if Pharmacare Means More Generics” seems like kind of a hollow threat. Approximately 75% of the Canadian population lives within easy driving distance of the U.S. Even if big pharma companies delay Canadian launch of new drugs, the interested Canadian public can largely get those same drugs by driving across the border. I am sure that most Canadian drug purchasers would rather be able to buy their medicines at their local pharmacies, but if push comes to shove, the CA government can fairly easily face down the putative threat here without much worry of a citizen uproar.

A Pharmacare system is supposed be a State “remedy” for the prices arrived at by a free market. It is a way to AVOID commerce in drugs and instead put in place a forced “guarantee” for affordable drugs. A country puts in place such a system, only INSOFAR as a majority of its citizens reject a free market for life saving drugs and believes individuals should not be self-responsible for purchasing said drugs.

As such, if a Pharmacare system is actually implemented, a culture which authors such a system is such that any requirement for a citizen to leave the nanny state, go to the US, and actually trade value for drugs, WOULD be offended and insulted and angry.

The petty socialist nature of such a culture goes so far as to label those who decide to spend their own hard earned money to save their own lives, as “jumping the queue” of the socialist system in their own country. The implication being that an individual’s duty to the State and the system supercedes their voluntary choices regarding own money/wealth/values and the value of their own life.

A moral socialist, waits in line for shoddy free pharmacare or goes without, risking health and life, because its only “fair”.

Er, o.k., if you say. Somehow Canada has done a bang up job of hiding those gulags and bread lines you assure me will inevitably follow from a Pharmacare statutory scheme. I did not see the least evidence of them last time I was in Montreal (nor on any other occasion that I have visited Canada over the last 25 years that I have been travelling there). It is kind of startling to think that their existing drug insurance scheme has not produced such untoward outcomes, but this one wrinkle will finally push things over the edge.

If only there was a name for a system where a bunch of people get together to respond to the actions of corporations of which the people disapprove…. what ever we would call that would be groundbreaking…

I continue to think that talking of “journal” articles or “professors” is absurd in a world where we know that many of these “professors” are really paid advocates for large corporations and that what they publish is not only not peer reviewed, but it is not subject to ethical review.

Why is the Joe Nocera article being carried over from the last Bits and Bytes? In any event, I will post the same comment here that I posted there.

If you read the Joe Nocera piece, it is an interview with Robin Feldman. As it happens, Dr. Feldman recently made an appearance on Russ Roberts’ Econtalk podcast. Her talk with Roberts and her interview with Nocera are largely the same.

Having both read the Nocera interview, and listened to the Roberts podcast, I do not really disagree with Dr. Feldman about the problematic nature of the price growth of certain pharmaceuticals (especially generic pharmaceuticals). I do question, however, her proposed solutions that go after patents in the pharma industry. By her own admission, prices are also going up faster than inflation with regard to certain long-since-off-patent drugs like insulin. This should tell you that the problem here is not really caused by patents.

Rather, the holdup is in FDA law. If she really wants to solve the problem, she would do better to suggest changes to FDA law than to patent law.

Not surprising to note that many of those not able to actually match the legal point for legal point nature of actual debate have each shied to a “I need a puppy type of stance of late, including Ben, Marty, Squirrel, Greg and Night Writer. Guys – maybe focus LESS on “friend” and more on actually engaging the points I present.

I have engaged you. You merely proclaimed yourself the victor and claim I ran away.

Right. This is a pattern that has repeated so many times over on these boards that it is as predictable as moon phases by now.

If you stick your hand in a fire, you will get burned. If you stick your hand in the same fire five times, you will get burned five times.

Admittedly, I have no grounds to boast, as I stuck my hand in the same fire well over 100 times before I learned not to. I take a certain measure of satisfaction, however, in the realization that I did learn eventually not to do it again.

Mental.

With respect, what are you? As Albert Einstein is popularly said to have observed, “[t]he definition of insanity is doing the same thing over and over and expecting different results.” How many times do you have to offer real arguments and get a load of bad-faith and intellectual dishonesty spat back on you before it dawns that this is all that you are ever like to get?

“How many times do you have to offer real arguments and get a load of bad-faith and intellectual dishonesty spat back on you before it dawns that this is all that you are ever like to get?”

With all due respect, Greg, I am the one offering real arguments and real points that are not being engaged with inte11ectual honesty.

But I do this not just to try to engage those that would spin a different version of reality, but for those that read these blogs and may not have a full grounding in law so that they too see that the attempted spin is not something that is “so,” just because those that would spin their propaganda so often say so (without rebuttal).

Not attributed to Einstein, but to Goebbels: say a L 1 E often enough, and people will believe it. That is the modus operandi of the anti-patentists here.

As to Night Writer (not an anti-patentist for sure), and his latest “plight,” I am curious as to what “real arguments” you see that have not been dealt with and what “bad-faith” you think is out there. What exactly is the “intellectual dishonesty” that YOU think is being played out.

Chances are more than good that you have not bothered at all to read the actual exchanges on the other blog being referenced*** and that you are basing your reaction here on your feelings and not the facts of the situation.

As I pointed out to Marty, I have no qualms taking Night Writer to task for his repeating of something shown to be false. That Night Writer wants to pretend that he has answered real arguments and real points in the multi-point rejoinder to his “tie to Constitutionality” when he clearly has not is something that I will gladly point out. Night Writer is free to reference or link to those mythical answers of his. He won’t because he cannot.

I think that more likely you are confusing what YOU “like to get” with the fact that vigorous debate and points that you do NOT like does NOT mean that the other side is engaging in any type of “bad-faith” and “intellectual dishonesty.” It just means that others do not agree with you – and have points that you do not like.

Your own answer is dressed up in an excuse not to engage. As always, that is your option. But not engaging is just not the same as assuming that you are correct for the reason you offer not to engage. The more ready answer for many choosing not to engage is because to engage would mean that they would not be able to continue foisting their viewpoint.